Bellamy v. Bellamy

• Decision Date: 03 May 1961
• Citation: 342 Mass. 534,174 N.E.2d 358
• Parties: Alessio A. BELLAMY et al. v. Mary BELLAMY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 358

174 N.E.2d 358

342 Mass. 534

Alessio A. BELLAMY et al. v. Mary BELLAMY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1961.

Decided May 3, 1961.

Louis Karp, Boston (Arthur L. Murray, Medford, with him), for plaintiffs.

Allan Roy Kingston, Somerville, for defendant.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPEIGEL, JJ.

SPIEGEL, Justice.

This suit in equity is brought by the ten surviving children of the late Josephine A. Bellamacina who died intestate on August 2, 1953. Her husband predeceased her. An eleventh child, Anthony Bellamy, died intestate and without issue on March 12, 1959. The defendant is his widow. The plaintiffs seek a conveyance of certain real estate consisting of land and a dwelling house from the defendant so that each of ten plaintiffs and the defendant will be vested with a one-eleventh interest therein as tenants in common. The evidence is reported. The judge of the Superior Court who heard the case made findings and order for decree. A final decree was entered ordering the defendant forthwith to convey title to the property to herself and to the plaintiffs as tenants in common. It is from this decree the defendant appealed. There are also before us exceptions with reference to the admission of certain oral testimony.

On March 21, 1945, Josephine A. Bellamacina, mother of the plaintiffs and mother-in-law of the defendant, purchased a house and took title thereto in her own name. On that same day she executed a deed conveying the property to herself and Alessio as joint tenants. Alessio was allowed to testify over the defendant's exception that it was agreed between his mother and himself that upon her death title to the property would be in the names of all her children. They were a 'closely knit family' and nine of Josephine's children lived with her in the house 'off and on' between March 21, 1945, and July 7, 1948.

In July, 1948, Alessio was in the United States Navy and stationed in Tennessee. On July 7, 1948, Josephine and Alessio conveyed the property by deed to Angelo A. Bellamacina, another son (who subsequently changed his name to Anthony A. Bellamy), and Laura M. Bellamacina, a daughter, as tenants in common. This conveyance was free and clear of any mortgage. On the same date Angelo and Laura gave a mortgage upon the property to the North Avenue Savings Bank in the sum of $10,500. On January 26, 1955, Laura who was about to be married, conveyed her interest in the property to Anthony subject to the mortgage to the North Avenue Savings Bank upon which $7,678.81 remained unpaid. This deed bore no revenue stamps and recited that the consideration involved was less than $100.

The trial judge found that 'Prior to her death the late Josephine had written a letter to Alessio in which she stated that she wanted the property divided equally among her children after her death and that she was conveying the property [to Angelo and Laura] with the understanding that this would be done. Angelo and Laura had been shown this letter by Alessio and were aware of their mother's intention at the time of the conveyance to them. Accordingly they took title to the property under the terms of the trust despite the deed in absolute form. The mortgage given by them at the time they acquired title was merely a device to obtain refinancing of the property. * * * [After] the death of Josephine on August 2, 1953, Angelo who *...